THE WAR ON WOMEN

The fight over triple talaq has reached a turning point, with the Supreme Court resuming arguments about its constitutional validity. As the Modi government’s call to ban the Muslim custom segues into campaign rhetoric, what loses ground is the larger que

“Talaq, talaq, talaq.” And Murtaza hung up the phone, ending his 15-year marriage to Ishrat Jahan, a mother of four. The embroiderist from West Bengal, now in Dubai, wanted a new life and a new wife. “Just because we eat apples, can’t we like other fruits?” Ajmal Basheer WhatsApped his talaq to his bride of 10 days in Kerala. Dowry or divorce? Syed Ashhar Ali Warsi of Madhya Pradesh used Speed Post to liquidate his marriage to Afreen Rehman. Rizwan Ahmed of Uttar Pradesh simply posted a letter to wife Shayara Bano, 37: “Talaq. Talaq. Talaq.” It’s a normal story: just a few men among many, exercising ‘rights’ bestowed by the Muslim Personal Law (Shariat) Application Act, 1937. But there’s a twist in the tale. In a groundswell of anger, Muslim women are coming forward. Burqas unveiled, staring unflinchingly into press cameras, navigating the labyrinth of court procedures, to challenge the tradition that grants their husbands the instant, unilateral and irrevocable right to divorce them: the talaq-ul-biddat or triple talaq.

In the summer of 2016, several women who had been treated with casual disregard by their husbands suddenly had to be taken very seriously indeed. Their petitions in the Supreme Court, along with the Narendra Modi government’s clarion call to topple the custom, caught the nation off-guard, triggering a tense debate: about the condition of ‘hapless Muslim women’, the legal status demanded by them, the brash rejection by Muslim clerics, the real interpretation of the law, the scenario in other Muslim nations, the misogyny inherent in the personal laws of all communities, the possible need to inscribe a religion-neutral common code (or the Uniform Civil Code) in the statute books and, of course, the politics of vote bank in view of the Uttar Pradesh assembly elections. With the Supreme Court having resumed arguments on the triple talaq cases from January, the countdown has started.

“Just as Hindus committing female foeticide will have to go to jail, likewise, what is the crime of my Muslim sisters that someone says ‘talaq, talaq, talaq’ over the phone and her life is destroyed?” On October 24 last year, when Prime Minister Modi suddenly expanded the boundaries of the debate on triple talaq during an election rally in Bundelkhand, the nation sat up. It was the second time he had spoken out on the issue since his Vijayadashami speech in Lucknow on October 11. He alerted news channels against turning it “into an issue of Hindu versus Muslim or BJP versus others” and cautioned politicians against the “lust for vote bank”: “Daughters, mothers, sisters should be protected. One should not consider religion.”

The media went into overdrive. Had Modi hinted at a move toward a uniform civil code, a fixture in BJP manifestos since 1998? Social networks lit up with excited chatter: why has the PM jumped into the debate before Uttar Pradesh goes to polls? Hashtags started trending: #OneNationOneLaw. The All India Muslim Personal Law Board (AIMPLB) issued a volley of protest that the PM had no right to interfere. “Those opposing uniform civil code should go to Pakistan,” retorted Hindu hardliners. Union ministers held press conferences on gender justice, while their political opponents questioned their ‘intention’ of imposing a ‘single ideology’ on all citizens. The Law Commission of India floated its questionnaire, calling for public debate. The Supreme Court maintained a sphinx-like silence, announcing its intention to set up a larger sevenjudge bench: a sign of the upcoming storm over fundamental questions of law.

Politics of justice

But the nation is squirming. As Uttar Pradesh heads towards polls, the triple talaq issue is getting subsumed within the campaign rhetoric. On February 5, Union minister Smriti Irani, on the campaign trail in Lucknow, demanded that the Congress and the Samajwadi Party clear their stand on triple talaq. “Women should be respected… I am saying it publicly that be it Akhileshji, Rahulji, Dimpleji or Priyankaji… Will they give their opinion on triple talaq or will they hint that there is a difference between the rights of Hindu and Muslim women?” A day later, Union law minister Ravi Shankar Prasad similarly threw a dare at the Samajwadi Party, Congress and the Bahujan Samaj Party to make clear their stand on the contentious issue, adding that the Centre would take “a major step” to ban triple talaq after the elections. The same day, Union urban development minister M. Venkaiah Naidu said: “There is a stated

stand of the Bharatiya Janata Party from the beginning, and the government will present its view when the matter comes up before the Supreme Court.”

What the nation faces now is a worrying question: What’s behind the Modi government’s determination to do away with triple talaq? Is it a legal manoeuvre or political warfare? For, the complexity of triple talaq and personal laws goes far beyond politics. The Constitution describes India as a ‘sovereign, socialist, secular, democratic republic’, yet the private lives of its citizens are governed by different laws, inherently discriminatory to women and outliers within a community, explains Upendra Baxi, professor of law, Warwick University. “It has exposed a basic dilemma which the nation must face one day,” he says. To some, the

government is using triple talaq to demonise the Muslim community and build a polarising narrative on the eve of the UP elections. “In the heat of the debate, nobody asks Mr Modi what have you delivered,” says Shabnam Hashmi, co-founder of ANHAD, a human rights network. “Uncomfortable questions get diverted.” Personal laws, she says, do not affect only Muslims; there are problematic laws in every community. “If the government is so bothered about women, why not bring in laws against khap panchayats and honour killing?” she asks.

An eternal debate

To Flavia Agnes, feminist lawyer and director of Majlis Legal Centre, Mumbai, it’s a debate that has been with India since the 1930s. “Yes, personal laws are patriarchal,” she says (see interview: ‘Merely getting rid of personal laws

won’t reform society’). “But you must realise that all personal laws are not similarly affected. If you have a specific injustice happening in your community, you can go to court and set that right.” During the Constituent Assembly debates, then law minister B.R. Ambedkar and Prime Minister Jawaharlal Nehru had proposed a common code. With the Hindu Right opposing it tooth and nail, it had led to Ambedkar’s resignation. “The truth is that women’s rights are always a pretext,” says Agnes. For Ambedkar, the point was to bring all Hindus into one fold; Modi’s agenda is to get back at the Muslim community, she says. “The irony is that Modi deserted his own wife. He had no tears to shed for her, but he suddenly has a lot of sympathy for Muslim women.”

A new mood has been picking up at the Supreme Court for quite some time now. Up and down its marbled labyrinth, courtrooms are echoing with outspoken jurists, venting their frustration at the surge in cases on confusing personal laws and the Centre’s inaction. In October 2015, there was a stunned silence as Justice Vikramjit Sen’s voice rumbled through courtroom 10 of the Supreme Court: “What is happening?” he thundered. “Why is this happening? There is total confusion.” It was the third time in a year that the top judges had thrown up their hands in despair. Sen tossed a question at the solicitor general: “What happened to the uniform civil code? Why don’t you frame it and implement it?”

Within a few days, a bench of Justices A.R. Dave and A.K. Goel requested the chief justice of India (CJI) to constitute a special bench in order to make Muslim personal laws gender-equal, in line with the Constitution. “Laws dealing with marriage and succession are not part of religion. The law has to change with time,” the bench said. Yet, in December 2015, CJI T.S. Thakur refused to entertain a PIL that asked for court intervention to direct Parliament or the government to enact a uniform civil code, calling it “a matter for the legislature” and a community’s issue. “Let its women come forward to challenge,” he said.

And it did happen in 2016: Shayara Bano, after 15 years of marriage, multiple pregnancies and forced abortions, became the first Muslim woman in India to challenge triple talaq. At the core of the debate is the question: Is the uniform civil code an idea whose time has come? As the Constitution, in Article 44 of the Directive Principles of State Policy, states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The underlying assumption is that a uniform civil code would create a sense of ‘Indianness’ and strengthen national unity. “But it’s a goal, not a right,” Baxi points out. “It contains no mechanism and provides no timetable for enforcement.” Article 44 is also silent on how long the state shall “endeavour”. Nearly eight decades have gone by since a uniform civil code was first mooted. Isn’t that too long for the state to “endeavour” without anything to show for it? Or, as some say, is the time not ripe yet? Or is it time to amend the article itself and change its vague promise into a timebound schedule?

Outrage from below

This is an extraordinary moment for ordinary people. For, the demand for change is coming from them. Over 50,000 signatures from Muslim women and men demanding a ban on the practice of triple talaq have been sent to the prime minister. “Muslim personal law has become the sole and arbitrary privilege of a few clergies with vested interest,” says Zakia Soman, co-founder of the Bharatiya Muslim Mahila Andolan (BMMA). “This situation must change. They cannot forever exclude women.” A survey (‘Seeking Justice Within Family’, March 2015) of nearly 5,000 women by BMMA shows 59 per cent divorced Muslim women in the sample were victims of triple talaq and 92 per cent want it to be banned.

“I want justice and to get on with my life,” says Shayara Bano. Rehman, who moved the Supreme Court in May 2016 to end “frivolous triple talaqs”, calls it “wrong and unfair”. Ishrat Jahan, who has lost the roof over her head as well as her children to her husband, says: “I don’t accept the talaq by phone. I want justice. And I will fight to

There’s an intense demand for change. A petition with over 50,000 signatures from Muslim women and men demanding a ban on triple talaq has been sent to the PM

constitutional validity of Section 10A(1) of the Divorce Act, which prescribes a minimum two-year period of separation for Christian couples before they can file for divorce by mutual consent, whereas Hindus and Parsis can file a divorce suit after a year of living separately. Between May and August 2016, in two different verdicts, the courts upheld the rights of women to enter and worship at the Sabarimala temple in Kerala and the Haji Ali shrine in Mumbai. And in December 2015, Sujata Sharma, eldest daughter of a Delhi businessman, won the right of a woman to be the karta of the property in the Hindu Undivided Family.

Parsi sisters Goolrokh M. Gupta and Shiraz Contractor Patodia have challenged the ban on women of the community who marry outside their religion to enter the fire temple to participate in the funeral rites of their parents and relatives. Mumbai resident Roxann Sharma, who used to teach at the Los Angeles Community College, US, has been fighting the Hindu Minority and Guardianship (HMG) Act since 2012, when her husband absconded after forcibly taking away their son. It worked in his favour for a while as the HMG Act makes the father the “natural guardian” of a child. The Supreme Court granted Sharma interim custody of her three-year-old son in February 2015, declaring the mother to be the “natural guardian” if a child is less than five. “My case is a landmark one, as it offers some medicine to a society diseased with misogyny,” Sharma writes in her blog.

Charged with making sense of the nation’s personal laws by the Union law ministry, the Law Commission of India, on October 7, 2016, brought out a questionnaire with 16 questions, calling all Indian citizens to engage, debate and suggest models and variations of a single common code by mid-November. There are questions on the topics the uniform civil code should include or exclude, whether or not the common code should be optional, on triple talaq among Muslims, property rights of Hindu women, Christian women’s right to equality in divorce, inter-caste and inter-religion marriages, the compulsory registration of marriage and so on. “We are inviting every Indian to keep an open mind, read and respond to our questions, understand your own country, before thinking about the code,” says Justice B.S. Chauhan, chairman of the Law Commission of India. It’s a legal landmine, though. “India is a land of religions and it is not easy to change people’s religious beliefs,” he says.

The Constitution assures protection of the fundamental rights of equality before law (Article 14), the right to live with human dignity (Article 21), the freedom to profess, practise and propagate religion (Article 25). “These are

the limits within which the modern Indian state has been struggling to balance, negotiate and mediate the claims of various communities of faith and their laws,” says Justice Chauhan. As his office digs deep, the variety, diversity and range of laws and judgments take them by surprise. Thus, they have come across a Bombay High Court judgment that gave Muslims the freedom to opt for the 80-year-old Muslim Personal Law (Shariat) Application Act, 1937, governing triple talaq and polygamy.

Our laws hold many such surprises: while Indian males are liable to be jailed for marrying two women at the same time, in Gujarat just the promise of everlasting love (and a financial undertaking) before a magistrate can keep one out of jail, thanks to the maitri karar (friendship) contract between a man and a woman. The family laws in Goa recognise something called “limited polygamy” for Hindus. Polyandry is common in Haryana and among various communities in the Northeast and elsewhere in the country. Hindu personal laws prohibit sagotra vivaha (marriage within the clan), which has provoked the honour killing diktats of khap panchayats. It is evident that discrimination towards women runs across religions. “All feudal laws are unjust,” says former Supreme Court judge Justice Markandey Katju. But as Agnes points out, the obsession is solely with the Muslim community. “People are too busy pointing fingers at Muslims rather than bothering about the rights of their own daughters,” she says.